This
matter is before the Court on Defendant's Motion to
Dismiss. For the following reasons, the Motion is denied
without prejudice.

BACKGROUND

Plaintiff
Jonathan Hall worked as a conductor at Defendant Canadian
Pacific Railway (“CP”)[1] for slightly more than one
year. (Compl. (Docket No. 1) ¶¶ 12-13.) On October
3, 2015, Hall injured his back while working. (Id.
¶ 16.) The parties vehemently dispute the injury-both
how it occurred and how serious it was. It is undisputed,
however, that Hall did not report the injury to his
supervisor on that day.

Hall
went to the emergency room the following day, October 4,
2015. (Id. ¶ 18.) He was prescribed pain
medication and the physician told him not to take certain of
the medicines while working. (Donesky Decl. (Docket No. 11)
Tab A (Hall Dep.) at 164-66; see also Fuller Aff.
(Docket No. 14) Ex. 10 at 8 (“[The doctor] told me to
only use those [pills] on my days off.”).) Hall did not
report the injury to CP that day, either, and in fact he
continued working. (Compl. ¶ 23.)

On
October 15, Hall went to the emergency room again.
(Id. ¶ 25.) The doctor prescribed additional
medication and told Hall not to work temporarily. The next
day, Hall visited a general practitioner, who gave Hall
workers' compensation paperwork. Hall contends that he
tried to call his supervisor on October 15 but did not reach
him; according to Hall, he slipped the workers compensation
paperwork under his supervisor's door on October 16 after
his doctor's visit. (Id. ¶¶ 28-29.)
Hall's supervisor, Chris Danula, did not receive the
papers until October 18. (Id. ¶ 30.) Danula
called Hall that day; the call was recorded and a
transcription is in the record. (Fuller Aff. Ex. 10.) During
the call, Hall described the injury and his medical
treatment; his description of the injury conflicts with the
Complaint's depiction of the injury as very minor.

CP's
rules require its employees to report any injury sustained on
the job “immediately.” (Compl. ¶ 37 (quoting
CP's Gen. Code of Operating Rules (“GCOR”)
1.2.5).) Because CP did not think that Hall reported his
injury immediately after he suffered it, CP scheduled a
disciplinary hearing as the parties' Collective
Bargaining Agreement required. (Fuller Aff. Ex. 13.) The
hearing was held on November 3, 2015; Hall appeared, was
represented by his union representative, testified, examined
witnesses, and presented evidence. (Fuller Aff. Ex. 17;
Donesky Decl. Tab Q.)[2] After the hearing, the hearing officer
determined that Hall had violated GCOR 1.2.5. (Donesky Decl.
Tab BB.) Another reviewer then examined the hearing
officer's conclusions and the record. That reviewer
determined that Hall had violated GCOR 1.2.5 and that, in
light of Hall's previous disciplinary history and his
short employment with CP, the appropriate punishment was
dismissal. (Id.) After several other reviewers
concurred in the recommendation, CP terminated Hall's
employment on November 17, 2015. (Fuller Aff. Ex. 15.)

Hall
appealed his termination to CP, and that appeal was denied.
Hall also filed for arbitration under the Railway Labor Act,
which remains pending.

After
the disciplinary hearing but before the decision issued, Hall
also filed a complaint under the Federal Railroad Safety Act
(“FRSA”), 49 U.S.C. § 20109, with the
Occupational Safety and Health Administration
(“OSHA”). (Donesky Decl. Tab JJ.) OSHA
investigated, and on August 8, 2016, it dismissed Hall's
complaint because it found that the complaint was unsupported
by reasonable cause. (Id. Tab KK.) Hall objected to
the dismissal and sought a de novo hearing before an
Administrative Law Judge (“ALJ”), as provided in
the regulations. (Id. Tab LL.) The parties then
engaged in extensive discovery, including expert discovery
and multiple depositions. (See Fuller Aff. Exs.
18-20 (depositions for ALJ proceeding).)

In May
2017, Hall moved the ALJ for a partial summary
decision.[3] At about the same time, CP asked the ALJ
to exclude two of Hall's expert witnesses who had been
disclosed after the discovery deadline passed. (Donesky Decl.
Tab QQ.) On Thursday, June 15, 2017, the ALJ granted CP's
motion to exclude the expert witnesses. (Id. Tab
RR.) On Friday, June 16, 2017, the ALJ denied Hall's
motion for partial summary determination. (Id. Tab
SS.) The hearing in front of the ALJ was scheduled for
Monday, June 26. But on Monday, June 19, Hall instead filed
this federal lawsuit, claiming that CP violated the FRSA by
retaliating against him for reporting his work-related
injury.

CP now
moves to dismiss. CP first asks that the Court find that Hall
has waived his right to file a federal lawsuit by litigating
the propriety of his termination before the ALJ. CP also
contends that Hall has failed to state a claim on which
relief can be granted, or in the alternative that CP is
entitled to summary judgment. CP argues that pre-discovery
summary judgment is appropriate because the record before the
ALJ was ostensibly fully developed.

DISCUSSION

A.
Waiver

The
FRSA provides that a railroad employee challenging an
employment action must pursue administrative remedies through
the Department of Labor, which includes OSHA. 49 U.S.C.
§ 20109(d). Although this remedy is initially exclusive,
the ...

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